Project On

Code of Criminal Procedure

Critical Analysis of Law of Anticipatory Bail with

Special Reference to Cases Decided by Supreme

Court of India.

Submitted By Roll No. 06 VIIth Semester B.A.LL.B (Hons.)

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PROJECT

REPORT

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Contents

Introduction……………………………………………………3

Meaning………………………………………………………..4

Object…………………………………………………………..5

Condition Precedent for making application………………..6

Bail and Anticipatory Bail: Distinction………………………8.

Forum……………………….....………………………………9

Consideration…………….……………………………………9

Notice to Public Prosecutor……………………………………10.

Blanket Order…………………………………………………….11

Cancellation of Anticipatory Bail……………………………….13

Conclusion………………………………………………………..14

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Introduction

„„There can be no presumption that the wealthy and the mighty will submit

themselves to trial and that the humble and the poor will run away from the

course of justice, any more than there can be a presumptions that the former are

more likely to commit a crime and the later are more likely to commit it. Lord

Russell said “It was the duty of magistrate to admit accused person to bail,

whenever practicable, unless strong grounds for supposing that such person

would not appear to take their trial .It was not the poorer class who did not

appear, for, their circumstances were such as to tie them to the place where they

carried their work .They had not the golden wings with which they fly from

justice.

Section 438 of Code of Criminal Procedure 1973, makes provision enabling the

superior courts to grant anticipatory bail i.e. a direction to release a person on

bail issued even before the person is arrested. The Law Commission considered

the need for such a provision and observed:

“The necessity for granting anticipatory bail arises mainly because

sometimes influential person try to implicate their rivals in false causes for the

purpose of disgracing them or for other purposes by getting them detained in

jail for some days. In recent times, with the accentuation of political rivalry, this

tendency is showing signs of steady increase. Apart from false cases, where

there are reasonable grounds for holding that a person accused of an offence is

not likely to abscond, or otherwise misuse his liberty while on bail, there seems

no justification to require him first to submit to custody, remain in prison for

some days and then apply for bail.”

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Meaning

The word “anticipatory bail” is not found in Section 438 or in its marginal note.

In fact “anticipatory bail” is a misnomer as it is not bail presently granted in

anticipation of arrest. When the court grants “anticipatory bail”, what it does to

make an order that in event of arrest, a person shall be released on bail.

Manifestly there is no question of release on bail unless a person is arrested,

and, therefore, it is only on arrest that the order granting “anticipatory bails”

becomes operative.

It has also been held that anticipatory bail cannot be granted to a person to do

something which is likely to be interpreted as commission of a crime even if the

offender intended it as something in exercise of his rights. The expression

“anticipatory bail” is convenient mode of conveying that it is possible to apply

for bail in anticipation of arrest. The Section, however, makes no distinction

whether the arrest is apprehended at the hands of the police or at the instance of

the magistrate. The issuance of warrant by the Magistrate against a person

justifiably gives rise to such an apprehension and well entitles a person to make

a prayer for anticipatory.1 Issuance of summon for appearance also entitles an

accused to apply for anticipatory bail.2Section 438 empowers the High Court

and the Court of Session to grant anticipatory bail i.e. a direction to release a

person on bail issued even before the person is arrested.

1 Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)

2 P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).

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Object

Under the old Code of 1898, there was a conflict of judicial opinion about the

power of court to grant anticipatory bail. Some High Courts were of the view

that the Court could grant such bail but the majority view was that there was no

such power in the Court. The law commission, therefore, in its Forty-first

Report recommended introduction of a provision to grant “anticipatory bail”

and stated “the necessity for granting anticipatory bail arises mainly because

sometimes influential persons try to implicate their rivals in false cases for the

purpose of disgracing them or for other purposes by getting them detained in

jail for some days. In recent times, with the accentuation of political rivalry, this

tendency is showing signs of steady increase. Apart from false cases, where

there are reasonable grounds for holding that a person accused of an offence is

not likely to abscond, or otherwise misuse his liberty while on bail, there seems

no justification to require him to first to submit to custody, remain in prison for

some days and then apply for bails.”

Commenting upon the provision, the Law Commission, in its Forty-eighth

Report observed “We agree that this would be a useful addition, though we

must add that it is only in very exceptional cases that such a power should be

exercised.”

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Condition Precedent For Making Application

Before an application may be moved under this section-

(1) There must exist reasonable ground for the applicant to believe that he

may be arrested,

(2) Secondly, there must be accusation of a non-bailable offence against

him. The use of expression “reason to believe” shows that belief that the

applicant may be so arrested must be founded on reasonable ground.

Mere „fear‟ is not belief, for which reason it is not enough for the

applicant to show that he has some short of a vague apprehension that

someone is going to make an accusation against him, in pursuance of

which he may be arrested. The grounds on which the belief of the

applicant is based that he may be arrested for non-bailable offences must

be capable of being examined by the court objectively. Vague and general

allegations are not enough.

It was held in Joginder alias Jindi v. State of Haryana, that a petition for

anticipatory bail under Section 438 Cr.P.C. in relation to bailabe offence

is misconceived as Section 438 of Cr.P.C . related to non-bailable

offences. It was further observed that use of expression “reason to

believe” in Section 438 shows that the apprehension must be founded on

reasonable grounds and grounds must be capable of being examined. It

requires the mere fear of being arrested is not sufficient a sufficient

groung. It was also held that a blanket order that applicant shall be

released on bail whenever he is arrested for whichever offence

whatsoever cannot be passed. It was also pointed that direction under

Section 438 is to be issued at pre-arrest stage but it becomes operative

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only after arrest. The Court cannot restrain arrest . An interim order

restraining arrest if passed while dealing with application under Section

438 would amount to interference in investigation and therefore such an

order cannot be passed under Section 438. According to sub-section (3)

of this section if a person, who has been granted anticipatory, is arrested

without by an officer in charge of a police station and he is prepared,

either at the time of arrest or at any time while in the custody of such

officer, to give bail, he shall be released on bail.

MALIMATH COMMITTEE REPORT

Malimath committee has observed in its report that the provision as to

anticipatory bail has been misused by rich and influential people. The

committee however opined to retain the provisions subject to two conditions:

1-Public prosecutor should be heard by the court before granting an application

for anticipatory bail and

2- Petition for anticipatory Bail should be heard only by the court of competent

jurisdiction.

It may be stated that section 438 (1), as amended by the Code of Criminal

Procedure (Amendment) Act, 2005 now provides for hearing of Public

Prosecutor before granting an application for anticipatory bail.

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Ambit and Scope

Section 438 empowers a High Court and a Court of Sessions to grant

anticipatory bail. It is not as if bail is presently granted by the Court in

anticipation of arrest. But it means that in the event of arrest, a person shall be

enlarged on bail. This power is extraordinary in character and it is only in

exceptional cases where it appears that a person might falsely implicated, or a

frivolous case might be launched against him, or “ there are reasonable grounds

for holding that a person accused of an offence is not likely to abscond , or

otherwise misuse his liberty while on bail” that such power can properly be

exercised. This power being rather unusual in nature, is entrusted only to the

higher echelons of judicial service, namely a Court of Session and a High Court.

It is a power exercisable in case of an anticipated accusation of non bailable

offence and there is no limitation as to the category of non bailable offence in

respect of which the power can be exercised by the appropriate court.1

Bail and Anticipatory Bail: Distinction

The distinction between an ordinary bail and an anticipatory bail is that whereas

the former is available and granted after arrest, and therefore, means release of a

person from the custody , the latter is available and granted in anticipation of

arrest and is therefore is active at the very moment of arrest.

Again, there is no warrant for reading into Section 438 anything to limit the

discretion of the court by invoking the considerations mentioned in Section

437(1). The discretion has to exercise judicially by a High Court or Court of

Session considering the facts and circumstances of each case.

1. Balachand Jain v. State of MP, AIR 1977 SC 366.

2. Gurubaksh Singh v. State of Punjab AIR 980 SC1632

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Considerations:

As seen above, relevant considerations governing the discretion of the court in

granting anticipatory bail are materially different from granting bail to a person

who is arrested in the course of investigation or a person who is convicted and

his appeal is pending. Anticipatory bail to some extent extrudes in the sphere of

investigation of crime and the court, therefore, must be cautious and

circumspect in exercising such power. When a person is accused of serious

offence, such as murder, exceptional and compelling circumstances must be

made out for granting bail.

Forum

Section 438 confers concurrent jurisdiction of granting anticipatory bail on High

Court and Court of Session. The power being unusual in nature is entrusted only

to the echelons of judicial service. Some High Courts have taken the view that

ordinarily, a Court of Sessions must be first moved by an applicant. It is,

however, submitted that when concurrent power is conferred on the High Court

as well as on the Court of Session, no such restriction can be read in Section

438. Again, some High Courts have held that after the Court of Sessions rejects

an application, an applicant cannot move the High Court for same relief unless

circumstances have changed. It is submitted that this view is erroneous.

In Chandra Erappa v. State, the High Court of Karnatka rightly observed:

“ Of course , there can be no doubt as that in the hierarchy, Court of Session is

subordinate to the High Court; a party who makes an application under Section

438 of the code before the Sessions Court could approach the High Court, if his

application had been rejected by the Court of Session, but not vice versa. In

other words, if the party chooses to file an application under Section 438 of the

Code before the High Court and it is rejected, he cannot thereafter approach the

court of Session under the same provision and on the same grounds”

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Notice to Public Prosecutor

There is no provision in Section 438 for issuing notice to public prosecutor and

hearing by the court before granting anticipatory bail. However as held by the

Supreme court in Gur Baksh Singh v. State of Punjab , a notice should be

issued to the Public Prosecutor or the government advocate before passing final

order granting anticipatory bail. Therefore if there are circumstances justifying

ex parte interim order, the court may pass final order after hearing both sides.

It may, however may be stated that sub-section (1A) of section 438 as

amended by the Code of Criminal Procedure (Amendment) Act, 2005, now

expressly provides that before finally deciding an application for anticipatory

bail, the court will hear the Public Prosecutor.

Conditions

The high court and the court of sessions to which the application for

anticipatory bail is made can impose such conditions as the case may warrant.

The conditions mentioned in Section 438(2) are merely illustrative and not

exhaustive. The court while granting anticipatory bail must remember that the

investigation has not yet been completed and, therefore, it is the duty of the

court to ensure that the investigation should not be hampered or intervened with

in any manner.

The court however, cannot impose a condition other than warranted by law.

Thus, no direction can be issued to effect that the applicant, if arrested should be

released on bail provided he produces the alleged stolen property before the

investigating officer. Such order can be set aside by the High Court in revision

or by exercising inherent powers.

Duration

An order of anticipatory bail passed under Section 438(1) need not to be limited

in the point of time. The Court may, however, limit the operation of the order

and direct the applicant to obtain an order under Section 437 or Section 439 of

the code within that period. An order of anticipatory bail does not ensure till the

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end of trial, but must be for a limited duration till the trial courts has necessary

material before it to pass such orders as it thinks fit. Grant of unconditional

blanket protection is untenable and liable to be set aside.

Procedure

Section 438(2) is “really a machinery provision” for working out an order

passed under Section 438(1). It envisages a situation where the court decides to

proceed against the accused who has been granted anticipatory bail. All

subsequent steps must be in conformity with the order issued by the Court under

Section 438(1).

Blanket Order

A blanket order of anticipatory bail is an order which serves as a blanket to

cover or protect any and every kind of allegedly unlawful activity, in fact any

eventuality, likely or unlikely regarding which, no concrete information can

possibly be had. Such a blanket order of anticipatory bail should not generally

be granted. Since the section requires the applicant to show that he has “reason

to believe” that he may be arrested, such belief must be formed only if there is

something tangible to go by on the basis of which it can be said that the

applicant‟s apprehension is genuine. Normally, therefore, a direction should not

be issued under Section 438(1) to the effect that the applicant should be released

on bail “whenever arrested for whichever offence whatsoever.” A blanket order

of anticipatory bail is bound to cause serious interference with both the right

and the duty of the police in the matter of investigation because, regardless of

what kind of offence is alleged to have been committed by the applicant and

when, an order of bail which comprehends allegedly unlawful activity of any

description whatsoever, will prevent the police from arresting the applicant even

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if he commits, say, a murder in the presence of the public. Such an order can

then become a charter of lawlessness and a weapon to stifle prompt

investigation into offences which could not possibly be predicated when the

order was passed. Therefore, the court which grants anticipatory bail must take

care to specify the offence or offences in respect of which alone the order will

be effective.

Rules for exercising discretion

In Guru Baksh Singh v. State, the Full bench of Punjab and Haryana High

Court laid down certain principles as to when anticipatory bail should be

granted under Section 438 of the Code. Reversing the decision of the High

Court, the Supreme Court laid that Court has to decide the cases coming before

it after considering the facts and circumstances without laying down a cast iron

rule or adopting straight jacket formula. The court must be left free to grant or

refuse bail by exercising discretion judicially in the light of facts and situations

placed before it.

Successive Application

A second application after rejection of the first one under Section 438 is

maintainable if there are additional facts, further developments and/or different

considerations.

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Cancellation of Anticipatory Bail

Neither Section 438 nor any other section in the Code makes any clear

provision as to whether the order granting anticipatory bail can be cancelled

even before the regular bail is actually granted. However it has been held that

when Section 438 permits the making of an order and the order is made for

granting anticipatory bail, it is implicit that the court making such an order is

entitled upon appropriate consideration to cancel or recall the same. Thus, an

order of anticipatory bail granted by Court of Session can be recalled or

cancelled by that Court or by the High Court. But an order passed by the High

Court cannot be cancelled by the Court of Session.

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Conclusions

It is submitted that the following observations of Chandrachud CJ in Gurbak

Singh v. State lay down correct law regarding exercise of power to grant

anticipatory bail under Section 438 of the code, therefore are worth quoting:

“It cannot be laid down as an inexorable rule that anticipatory bail cannot be

granted unless the proposed accusation appears to be actuated mala fides; and

equally, that anticipatory bail must be granted if there is no fear that the

applicant will abscond. There are several others considerations, too numerous to

enumerate, the combined effect of which must weigh with the court while

granting or rejecting anticipatory bail. The nature and seriousness of the

proposed charges, the context of the events likely to lead the making of charges,

a reasonable possibility of the applicant‟s presence not being secured at the trial,

a reasonable apprehension that the witness will be tampered with and “ the

larger interests of the public or the State” are some of the considerations which

the court has to keep in mind while deciding an application for anticipatory

bail.”

Thus it can be said that there may be situations where arrest and detention may

be unjustified and these powers are sometimes misused. Therefore, a duty is

cast on the court in such situations to examine the facts carefully and to ensure

that no prejudice is caused to the investigation. It is delicate balance whereby

the liberty of the citizen and the operation of the criminal justice system have

both to be equally safeguarded. Where it is pointed out that the action is mala

fide or tainted the courts are required to do justice by preventing harassment and

unjustified detention. The court has to keep in mind while deciding an

application for anticipatory bail the nature and seriousness of the proposed

charges and the larger interests of the public or the state.

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